section 25.1(9)

INTRODUCTION AND BRIEF DESCRIPTION

This section prohibits public officers from committing an offense that would result in property damage without explicit authorization or unless necessary to preserve life or prevent the loss of evidence.

SECTION WORDING

25.1(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she (a) is personally authorized in writing to commit the act or omission or direct its commission by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officers law enforcement duties; or (b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to (i) preserve the life or safety of any person, (ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or (iii) prevent the imminent loss or destruction of evidence of an indictable offence.

EXPLANATION

Section 25.1(9) of the Criminal Code of Canada provides guidelines for public officers when carrying out their law enforcement duties. It states that a public officer cannot justify committing an act or omission that would otherwise be considered an offense and likely result in the loss of or serious damage to property, or directing such an act or omission, unless certain conditions are met. Firstly, the officer must meet the conditions set out in paragraphs (8)(a) to (c). These conditions require the officer to have reasonable grounds to suspect that an offense or criminal activity has occurred or is about to occur, that the act or omission is necessary for carrying out the officer's law enforcement duties, and that the act or omission is reasonable and proportional compared to the nature of the offense or criminal activity being investigated. In addition to these conditions, the officer must either be personally authorized in writing by a senior official who believes on reasonable grounds that the act or omission is reasonable and proportional in the circumstances, or the officer must believe on reasonable grounds that the grounds for obtaining such authorization exist but it is not feasible to obtain it. This is necessary if the act or omission is necessary to preserve life or safety, prevent the compromise of identities in undercover operations or prevent the imminent loss or destruction of evidence. This section is crucial in ensuring that public officers act within the law and do not engage in actions that may violate the rights of individuals or cause harm to property without proper justification. The guidelines set out in this section promote accountability and transparency in law enforcement and ensure that officers act in the best interest of the public and the law.

COMMENTARY

Section 25.1(9) of the Criminal Code of Canada serves as an important legal safeguard that prevents public officers from committing an offense that would result in the loss or serious damage to property. The section also prohibits them from directing others to commit such offenses except when certain conditions have been met. For a public officer to be legally justified in committing an act or omission that would otherwise be considered an offense, and which may result in loss or serious damage to property, the circumstances must be such that their actions are reasonable and proportional to the nature of the offense or the criminal activity they are investigating. Furthermore, the officer must have been personally authorized in writing by a senior official who believes on reasonable grounds that the action is necessary. This provision serves an important role in maintaining the integrity of the criminal justice system while also ensuring the safety and security of the public. It strikes a careful balance between the rights of individuals and the duties of law enforcement officials. It recognizes that law enforcement officials may sometimes need to take actions that are outside the bounds of the law in order to prevent greater harm, such as when the life or safety of a person is at risk or when evidence of an indictable offense could be lost or destroyed if immediate action is not taken. However, the provisions in section 25.1(9) must be carefully scrutinized to ensure there are no violations of basic human rights. The authorization process needs to be comprehensive, independent, and transparent to ensure that it is not used as a tool to cover up abuses of power. There has been concern in the past that authorization processes might not be adequate enough to protect civil liberties. It is essential, therefore, that checks and balances are put in place to limit the potential for misuse of power. Overall, section 25.1(9) of the Criminal Code of Canada serves an important function in safeguarding individual freedoms while allowing public officers to carry out their lawful duties. By ensuring that the actions of law enforcement officials are subject to scrutiny and oversight, it helps to prevent abuses of power while maintaining the integrity of the criminal justice system. Parliamentary committees have, in the past, examined this provision of the criminal code, and this has helped ensure that it remains a vital legal safeguard for individual rights today.

STRATEGY

Section 25.1(9) of the Criminal Code of Canada establishes restrictions on public officers' authority to commit illegal acts or omissions that may cause significant damage to the property or to direct someone else to commit such acts. While this provision allows public officers to use some discretion in their law enforcement duties, they must follow certain procedures to ensure their actions are reasonable and proportional in the circumstances. Therefore, when dealing with this section of the Criminal Code of Canada, some strategic considerations may include: 1. Preparing for emergencies: In some situations, a public officer might have to commit an act or omission that would otherwise be viewed as an offense to ensure public safety. Such as preserving the life or safety of any person, preventing the compromise of the identity of a public officer or other undercover operation, or preserving evidence of an indictable offense. Planning ahead of time for emergency situations and establishing clear protocols and guidelines can ensure that public officers act appropriately in such situations. 2. Understanding the conditions for committing illegal acts: As per the Criminal Code of Canada, public officers should meet the conditions set forth in paragraphs (8)(a) to (c) before committing an illegal act. Conditions include obtaining authorization to commit the act and ensuring that it is reasonable, proportional, and necessary in the circumstances. Public officers must understand these conditions and follow them accordingly. 3. Obtaining authorization: Senior officials are generally responsible for authorizing public officers to commit acts that would otherwise be considered illegal. Therefore, it is essential to have a clear understanding of the persons responsible for authorizing such acts within the organization and ensuring that these individuals have a reasonable basis to determine that committing the act or omission is reasonable and proportional given the nature of the investigation. 4. Documenting decisions: Public officers must document all decisions taken, including why the decision was taken and what alternative options were considered. Appropriate documentation can be crucial in defending the decisions taken in court or other venues where accountability is required. Strategies that could be employed in dealing with section 25.1(9) of the Criminal Code of Canada includes: 1. Conducting training sessions: Conducting training sessions for public officers on the restrictions and conditions set forth in section 25.1(9) can help ensure that they understand their responsibilities and the legal implications of their actions. 2. Establishing review mechanisms: Establishing review mechanisms within the organization can provide additional accountability and ensure compliance with the Criminal Code of Canada. Regular reviews of decisions taken and their justification can help avoid any wrongful actions. In conclusion, public officers must follow strict rules when conducting their law enforcement duties. Section 25.1(9) of the Criminal Code of Canada places limitations on the extent to which public officers can act in situations that could otherwise be deemed illegal. Strategic considerations such as preparation for emergencies, understanding the conditions for committing illegal acts, obtaining authorization, and documenting decisions, and employing strategies such as conducting training sessions and establishing review mechanisms can ensure that public officers act appropriately and are held accountable for their actions.

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